BVA9505596
DOCKET NO. 93-12 597 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased rating for the postoperative
residuals of a right eye pterygium, currently rated 10 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Jr., Counsel
INTRODUCTION
The veteran served on active duty from April 1946 to April 1949.
This case comes to the Board of Veterans' Appeals (Board) on
appeal of a November 1992 rating decision of the Montgomery,
Alabama, Regional Office (RO) of the Department of Veterans
Affairs (VA), which increased the evaluation of the postoperative
residuals of a right eye pterygium from zero percent to 10
percent disabling. The veteran appeals for a higher rating.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his right eye disorder is more
disabling than currently evaluated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the claim
for an increased rating for the postoperative residuals of a
right eye pterygium.
FINDING OF FACT
Postoperative residuals of a right eye pterygium result in
corrected central visual acuity in the right eye which is no
worse than 20/50.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for the
postoperative residuals of a right eye pterygium have not been
met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.75, 4..83a,
4.84a, Codes 6034, 6077, 6079 (1994).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran served on active duty from April 1946 to April 1949.
Service medical records show that the veteran underwent surgical
removal of a right eye pterygium in March 1949. Service
connection was established, and a noncompensable evaluation
assigned, in a May 1989 rating decision. The rating was
confirmed by decision of the Board in March 1991.
A letter, dated in January 1992, was received from W. Craig
Fowler, M.D. He indicated that he had evaluated the veteran in
January 1992. It was reported that the veteran had had a lesion
removed from the right eye in 1949 and currently had some
anterior corneal scarring and significant central visual axis
scarring. Best corrected level of vision in the right eye was
20/50. Dr. Fowler stated that according to the ophthalmic PDR of
criteria of percent visual loss, this would be rated as 25
percent. He stated that a surgical procedure, a superficial
anterior keratectomy, might improve this vision. He also stated
that there were mild cataractous changes in both eyes which were
fairly symmetrical, and vision in the left eye was 20/30.
A statement, dated in January 1993, was received from James S.
Sullivan, M.D. He indicated that he was treating the veteran for
multiple medical problems. He did not mention the veteran's
right eye disorder.
II. Analysis
The veteran claims an increase in the current 10 percent rating
assigned for postoperative residuals of a right eye pterygium.
His claim is well grounded, meaning not inherently implausible;
all relevant evidence has been developed; and there is no further
VA duty to assist the veteran with this claim. 38 U.S.C.A.
§ 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate
diagnostic codes identify the various disabilities.
A pterygium is rated on the basis of loss of vision, if any. 38
C.F.R. § 4.84a, Code 6034.
Visual acuity is rated based on best distant vision obtainable
after correction by glasses. 38 C.F.R. § 4.75. When service
connection is in effect for only one eye, the non-service-
connected eye is considered to have vision of 20/40 or better. In
such instances, visual acuity of the service-connected eye is
rated 10 percent when it is 20/50, 20/70 or 20/100; a 20 percent
rating requires vision of 20/200 in the service-connected eye. 38
C.F.R. §§ 4.83a, 4.84a, Codes 6077, 6079.
The statement from Dr. Fowler shows that the best corrected visual
acuity in the veterans service-connected right eye is 20/50.
Service connection is not in effect for decreased vision in the
left eye and his vision in that eye is considered to be (and in
fact is) 20/40 or better for rating purposes. While there appears
to be some decreased vision in the right eye due to cataract
formation, this has not been deemed significant by Dr. Fowler.
In the instant case, the application of the rating schedule to the
pertinent facts demonstrates that a rating in excess of 10 percent
is not warranted for the decreased visual acuity in the right eye
that has been deemed to be the result of scarring from
the pterygium that was removed in service. Under the cited legal
authority, 10 percent is the correct rating for service-connected
right eye vision of 20/50; and impaired vision in that eye comes
nowhere near 20/200, which would be required for a 20 percent
rating. While Dr. Fowler suggests that a higher rating would be
warranted under the "ophthalmic PDR of criteria," the Board is
bound to follow the VA rating schedule criteria established by
federal law.
The evidence does not show that the disability is so exceptional
or unusual, with such related factors as marked interference with
employment or frequent periods of hospitalization, as to render
impractical the application of the regular schedular rating
standards; thus an increased rating on an extraschedular basis is
not warranted. 38 C.F.R. § 3.321(b)(1).
The preponderance of the evidence is against the claim, and
therefore the benefit of the doubt doctrine is inapplicable, and
the claim for an increase in the current
10 percent rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert
v. Derwinski,
1 Vet.App. 49 (1990).
ORDER
An increased rating for the postoperative residuals of a right
eye pterygium is denied.
L. W. TOBIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.